Given the scenario above, it is reasonable to conclude that the employer could be sued. Could this have been avoided? Was the employee's driving and accident record known to the employer at the time of hire? Could the employer be culpable due to negligent hiring or negligent retention?

Negligent hiring is a legal theory that holds that an employer is responsible for a third party who is injured by an employee when that employer fails to diligently select competent and safe employees. For the company to be liable, the employee doesn't necessarily have to be acting on behalf of the employer when the wrongful act is committed.

Many negligent hiring cases that find their way into a courtroom arise when a potentially violent employee is hired into the workforce and then causes harm to some other person. Statistics from the Society of Human Resource Management underscore the risks employers face as a result of negligent hiring lawsuits:¹

• Over 30% of all business failures are the result of negligent hiring practices.¹
• Of the negligent hiring cases that go to trial, 66% result in jury awards averaging more than $600,000.¹

One way to avoid significant liability for negligent hiring is to develop practices that screen out potentially violent employees. An employer's screening process must be carefully designed to be non-discriminatory and avoid intrusion on potential employees' privacy rights.

An employer can also be held responsible for the negligent retention of an employee. Negligent retention occurs after an employer has hired an employee and becomes aware, or should become aware, that he may be incompetent or dangerous. If an employer learns of an employee's unfitness after hiring him and fails to take corrective action, the employer may be liable when the employee harms someone. Once again, statistics from the Society of Human Resource Management underscores just how costly a negligent retention lawsuit can be to an employer:¹

• On-the-job violence costs employers $36 billion annually. ¹
• The average award in a workplace violence lawsuit is $1 million.¹

Negligent hiring and retention are both a potentially large source of liability for employers. Consequently, an employer must take care to select and retain employees who are safe and competent to do the job. At OPENonline, we have experts that can help you set up the types and frequencies of your screenings that best fit your process of evaluating prospective employees and monitoring existing employees.

For more information on how OPENonline can help you to mitigate the liability associated with negligent hiring and retention, contact Customer Support at 800-366-0106 or by email at customersupport@openonline.com.

¹ Source: Society of Human Resource Management – 2006 End of Year Statistical Analysis

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• Don't reply to email or pop-up messages that ask for personal or financial information, and don't click on links in the message. Don't cut and paste a link from one message into your Web browser - phishers can make links look like they go to one place, but actually send you to a different site.
• Some scammers send an email that appears to be from a legitimate business and ask you to call a phone number to update your account or access a "refund". Because they use Voice over Internet Protocol (VoIP), the area code you call does not reflect where the scammers really are. If you need to reach an organization you do business with, call the number on your financial statements or on the back of your credit card, or type in the web address yourself.
• Use anti-virus and anti-spyware software, as well as a firewall, and update them all regularly.
• Don't email personal or financial information.
• Review credit card and bank account statements as soon as you receive them to check for unauthorized charges.
• Be cautious about opening an attachment or downloading any files from emails you receive, regardless of who sent them.
• If you've been scammed, visit the Federal Trade Commission's Identity Theft website at www.consumer.gov/idtheft.

OPENonline does not send out "phishing messages". If you suspect an OPENonline email may not be genuine, please contact our Customer Support Department at 800-366-0106 or via email at customersupport@openonline.com.

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Post-hire or annual screens have been a staple in many industries for years due to federal, state, insurance or company guidelines or regulations. For example, the Department of Transportation requires that truck drivers who hold commercial driver's licenses undergo an annual audit of their driving records and submit to periodic random drug testing, including specific employment questions on safety and drug use, before getting behind the wheel.

The child care, elder care, security and law enforcement communities also require post-hire background screening. The ongoing threats to the safety of children have prompted more frequent screening of teachers, coaches, bus drivers and even volunteers.

Beyond federal, state and industry-specific screening requirements, look at risk factors on a job-by-job basis and determine what kinds of risks could be reduced with post-hire screening. For example, jobs that require the use of heavy equipment, such as forklifts or other industrial machinery, could potentially cause harm to individuals and pose additional safety risks. As such, random drug-and alcohol-testing programs would be prudent for these job classifications.

An OPENonline customer recently found out just how important post-hire screenings can be. This customer checks the criminal and driving records of all applicants for delivery driving positions in their company. An applicant was hired after favorable pre-employment screening results were returned. As is their policy, the company performs post-hire screenings every six months. A six month post-hire screen returned several derogatory motor vehicle violations that happened in a 6 week period, including speeding, a hit and run accident and a driving under the influence arrest. This new information and their policy of "zero tolerance" resulted in the dismissal of this employee.

Employees with access to highly confidential information should be screened on an ongoing basis, as should employees with access to cash, credit card information or valuable merchandise.

Workplace violence is also a reality and a risk that spans every industry. According to the Bureau of Labor Statistics, over two million nonfatal incidents of workplace violence were reported in 2005. A periodic look at an employee's criminal record can provide great insight into current activities and risks that an employee could pose to other staff members. An inquiry into a national database of criminal records could divulge offenses such as theft, criminal misconduct, drug use, driving violations, and/or sexual assault.

OPENonline provides the services needed to conduct these post-hire background screenings. Contact Customer Support at 800-366-0106 or by email at customersupport@openonline.com to get the process started.

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Have your administrator contact our Customer Support Department at customersupport@openonline.com or 800-366-0106 to make changes to your company's account information.

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